LITIGATING SOCIO-ECONOMIC RIGHTS IN SOUTH AFRICA - PULP

Legal nature of socio-economic rights 41
socio-economic rights. It is important that the judicial function should
be assessed not in terms of its weaknesses, but in terms of its
strengths. It is also important to note that, when courts adjudicate
socio-economic rights, they are not doing so in competition with the
other organs of state. Rather, they are engaging in a dialogue which
requires that all the institutions of the state play a role in the
constitutional enterprise of actualising the rights. In such a dialogue,
it is important that all institutions put to use, in a collaborative
manner, their skills and capabilities as regards the enforcement of the
rights. The power of the courts to give the last word on the meaning
of the Constitution cannot therefore be exercised effectively without
the co-operation of other branches of the state. 124
The courts may not have the technical expertise to decide socioeconomic
questions from a political perspective. They do, however,
know about human dignity and oppression. The courts know ‘about
things that reduce a human being to a status below that which a
democratic society would regard as intolerable’. 125 The judiciary
should, however, where necessary, rely on other organs of the state
for technical capacity which those organs should provide in good faith
with the intention of advancing the rights in the constitution. Such
collaborative problem-solving processes also have the potential of
making it much easier to respond to polycentric tasks.
2.3.3 The problem of polycentricity
Arising from the objection as based on technical competence is also
the assertion that socio-economic rights disputes have polycentric
repercussions which makes them unfit for judicial adjudication. This
objection garners backing from the writings of Fuller, 126 who sets out
to answer two broad questions. Indeed, it is from Fuller’s writings
that a definition of the term ‘polycentricity’ could be deduced. The
first question Fuller sets out to answer is as to what kinds of social
tasks can properly be assigned to courts and other adjudicative
agencies. 127 The second question is what the forms of adjudication
124 I Currie ‘Judicious avoidance’ (1999) 15 South African Journal on Human Rights
158.
125 Sachs (n 79 above) 140.
126 L Fuller ‘The forms and limits of adjudication’ (1978) 92 Harvard Law Review 353.
127
Fuller (n 126 above) 354. Specifically, he asks the question as to what the lines of
division that separate social tasks from those that require an exercise of
executive power are. Additionally, he asks what assumptions underlie the
conviction that certain problems are inherently unsuited for adjudicative
disposition and should be left to the legislature.